Copyright and the donated manuscripts

Reader Phil Murray has in his possession two interesting handwritten documents that he wants to preserve for the future.

The first is a handwritten copy of a story of one family’s experience during the American Revolution. It had been copied by a member of that family from a newspaper article printed in South Carolina in 1853, and lovingly preserved tucked inside the covers of the family’s Bible.

The second is a handwritten book of medicinal remedies — recipes for drugs and elixirs — kept by another family member, one of the first settlers of a Georgia county, a druggist by trade. As with “most of the early druggist in his days, (this man) concocted all types of medicinal remedies — some quite interesting, and some involving the use of cocaine in their mixture,” Phil wrote. Created sometime around the 1830s, “This book was never published.”

Both of these documents came into Phil’s hands directly from descendants of the family involved. He wants to make sure that they can be protected and preserved for researchers within and without the family in the future.

One thing he thought of to secure some protection for them was copyright — raising the immediate question: “Is this material copyrightable?”

First off, The Legal Genealogist offers Phil hearty congratulations for wishing to preserve and secure future use of these documents. And Phil deserves even more hearty congratulations for thinking about the copyright implications in the first place.

Donated materials aren’t any different from any other types of materials in that critical respect: there are copyright considerations, and any archives or library that accepts donations is going to want to work with the donor to resolve any copyright concerns that might exist.

The key concepts underlying copyright in donated works are set out on the website of Society of American Archivists:

Assignment of copyright is often complex and you should work with the repository staff to clarify issues of copyright ownership. Generally, copyright belongs to the creator of writings and other original material (such as photos and music) but can be legally transferred to heirs or others. In addition, ownership of copyright is separate from ownership of the physical item (the letter or photo). Archivists often ask donors to donate not only the physical papers but also any copyright in them that the donor might own. This request makes it easier for researchers to use portions of the materials in their work.1

Let’s recap here:

1. Ownership of the copyright belonged to the creator of the item2 but it can be transferred from the creator to another person by a written assignment of rights or by law through inheritance.3

2. Just because you own the item — a book or a manuscript — doesn’t mean you own the copyright. “Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.”4

And one more not specifically mentioned in the Society of American Archivists’ paragraph:

3. Copyright protection in the United States is time-limited. Published and unpublished works are treated differently, but no matter what the category of item is, no matter when it was created, every type of copyrightable work in the Unites States is only protected by copyright for a specific term of years.5

Putting all of these concepts together, the answer to Phil’s question for both of these documents is simple:

No. Today, these documents are not copyrightable. Both are in the public domain:

The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.6

Here’s why.

The original story of the family’s experiences in the American Revolution was published in the United States — in that South Carolina newspaper — in 1853. And under American copyright law, “all works published in the United States before January 1, 1923, are in the public domain.”7

The fact that it was copied in the handwriting of a descendant and the handwritten copy is what’s at issue doesn’t change the analysis. It’s the original publication date of the original work that matters: you can’t extend how long a copyright lasts by making a new copy of the original work.8

The book of medicinal recipes was never published, so it has to be analyzed in terms of the rules for unpublished works. And, under American copyright law, the maximum term of a copyright for a work like this one, created before 1978 and never published, is now the lifetime of the creator plus 70 years.9 And unless the author of this particular work — written in the early 1800s — is some kind of superhuman, there’s no question he’s been dead far longer than 70 years.

Now this isn’t true everywhere. Remember that copyright law varies from country to country. So — just as one example — if you’re sitting there in Hobart this morning, Australian law would require a different answer: “Normal copyright law applies to published materials, however unpublished rare and unique material remains in copyright forever, or until it is published, when the ‘copyright countdown’ can begin.”10 Or if, as another example, you’re sitting there in London this morning, “The 1988 Copyright, Designs and Patents Act (as amended) states that unpublished literary and artistic works remain in copyright in the UK until at least 31 December 2039. Therefore important parts of the (British Library’s) collection remain in copyright, including very old manuscripts.”11

But if you’re sitting there this morning anywhere where the Stars and Stripes fly overhead, these old unpublished materials are now, officially, in the public domain.

So we don’t even have to get into the question of whether Phil has, or could acquire, ownership of the copyrights here. There simply aren’t any copyrights — and no copyrightable work — involved at all.

He and the archives he chooses are and will be the caretakers of the physical items only: there are no other legal rights to worry about.

Although the two manuscripts are not themsleves copyrightable, any additional material written by Phil, himself, such as an introductory biography of the pharmacist, an explanation of the historical context behind the original writings or their survival, or even footnotes, could qualify for a copyright as Phil’s own original work. There can be multiple layers of copyrights protecting different parts of a single book.

A good example would be the musical, “My Fair Lady.” George Bernard Shaw held the copyright on the original play (“Pygmalion”), including his delightful stage directions and notes. When Shaw’s script was later adapted for the movies, the authors of the movie script acquired an independent copyright on their adaptation, and the resulting film itself was also copyrighted. A few decades later, the play was adapted into the Broadway musical starring Julie Andrews and Rex Harrison, resulting in yet another layer of copyrights on the new adaptation, plus a completely new set of copyrights on the brand new Lerner and Lowe songs & lyrics and musical score. A final layer was created when the musical starring Audrey Hepburn and Rex Harrison was filmed. Trying to sort out exactly which parts of the whole are covered by each of these copyrights is nearly impossible. I believe that even today, any theatrical organization performing “My Fair Lady” must contractually agree to list extensive creative credits on the title page of their program (and furnish a copy of the actual program to prove they actually done so.)

Of course but – and this is a BIG but — the copyright only covers the new materials produced by Phil and not any portion of the original materials. As I’ve written repeatedly in the past, the Copyright Office could not be clearer on this: you can not get a copyright that bars anyone else from using the underlying materials that are now out of copyright.

Absolutely! I didn’t mean to imply that Phil should add a few paragraphs for the purpose of trying to “game” the copyright system, just that we should remember never to assume that if the underlying materials are in the public domain, then any accompanying materials an editor has created must be automatically in the public domain as well.

Great piece. I have taught copyright law for 30 years (and am retiring in four weeks), and it’s always good to see accurate statements since there is so much misinformation out there. I enjoy your blog all the time, but am especially interested in the areas where copyright and genealogy intersect. I’ve only been doing genealogy since last summer. If you ever want to chat about copyright issues, please let me know!